The next stop for Palestinians could be global courts

30 Nov 2012

08:47 PM

updated to 12:38 PM

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People wave Palestinian flags during a rally in the West Bank city of Nablus, supporting the resolution that would change the Palestinian Authority's United Nations observer status from "entity" to "non-member state" November 29, 2012.

Foto: Abed Omar Qusini / Reuters

The U.N. General Assembly's overwhelming vote to recognize Palestine as a non-member state offers little prospect for greater clout in world politics but it could make a difference in the international courts.

The formal recognition of statehood, even without full U.N. membership, could be enough for the Palestinians to achieve membership at the Hague-based International Criminal Court (ICC), where member states have the power to refer for investigation alleged war crimes or crimes against humanity.

With its upgraded status at the U.N., the Palestinians may now seek to apply to the ICC for membership and authority to file war-crimes charges against the Israeli government and its officials.

That threat of so-called "lawfare" has already prevented some Israeli civilian and military leaders from traveling abroad out of fear they'd be arrested as war criminals.

"Israelis are afraid of being hauled to The Hague," said Robert Malley, the Middle East program director for the International Crisis Group.

The Palestinians have long planned to use non-membership statehood at the U.N., once obtained, as a way to enter the ICC. One Palestinian negotiator, in talking to the International Crisis Group, called the strategy a "legal or diplomatic intifada" against Israel.

When Palestinian Authority President Mahmoud Abbas addressed the United Nations in September he specifically accused Israel of committing war crimes.

Israeli officials have said the country's armed forces strictly adhere to international law and argue the true aim of Palestinians' accusations is to isolate Israel.

Last spring, the ICC's former chief prosecutor turned down a 2009 Palestinian request for prosecution of Israel's actions in the 2008-2009 Gaza war with Hamas, specifically noting that Palestine was only a U.N. observer entity.

In September, the new ICC prosecutor, Fatou Bensouda, said a General Assembly vote could make the difference.

"What we have also done is to leave the door open and to say that if this -- if Palestine is able to pass over that (statehood) hurdle, of course, under the General Assembly, then we will revisit what the ICC can do," Bensouda said during a talk in New York.

The Hague-based ICC is the one international venue where individuals can be criminally charged. All 117 countries that ratified the Rome Statute, which created the court, are bound to turn over suspects.

The United States and Israel have not joined the Rome Statute, but that would not prevent the Palestinians from pursing cases under the treaty. ICC arrest warrants and rulings carry geopolitical weight even when they can't be enforced. An indictment of Libya's Moammar Gadhafi last year helped mobilize international support for the rebels who opposed him.

Of course, if the Palestinians enter the legal battlefield, they, too, risk being accused and prosecuted in the venues where they'd try to target Israelis.

There is no guarantee for either side that the ICC prosecutor would follow through on charges. The ICC has procedural obstacles that could head off any prosecution there.

Some commentators argue that, like lawyers in any legal fight, both the Palestinians and Israelis have exaggerated the stakes in what's more of a political and public-relations drama.

"The concern that something dramatic would change is overblown," said Rosa Brooks, a professor of international law at Georgetown University who has also served in policy roles at the State and Defense departments.

And it's important to remember that the ICC is a political organization as much as a legal one -- cases are initiated by member governments and the U.N. Security Council -- so geopolitical considerations can trump a strictly legal case.